Terrorist Activities Rule of Law Since September

¶ … Terrorist Activities

Rule of Law

Since September 11, 2001 the U.S. Department of Justice has charged 310 defendants with terrorism or national security-related crimes, resulting in 204 cases either being plea bargained or presented to a jury (Beck et al., 2011, p. 7). The conviction rate has been 87% for these defendants, which is similar to the conviction rate for all federal crimes (Beck et al., 2011, p. 2). The most common charge used in these cases recently, and the most successful, is 'material support', as defined under Title 18 U.S.C. § 2339A and § 2339B (Beck et al., 2011, p. 18-21). Prior to 2007, just 11.6% of all terror cases involved a material support charge under § 2339 (harboring or concealing), § 2339A, or § 2339B. In 2010, 69.4% of terror defendants were charged with material support and in 2011 a full 87.5% were indicted under this statute.

§ 2339A was signed into law as part of the Violent Crime Control and Law Enforcement Act of 1994 and two years later § 2339B was included in the Antiterrorism and Effective Death Penalty Act of 1996 (Doyle, 2010, p. 1-2). Both statutes were amended by the Patriot Act, by increasing the length of maximum sentences from 10 to 15 years and including life imprisonment should the commission of a terrorist act result in a death. Conspiracy to provide material support is also covered under these statutest. When compared to non-terrorism-related federal crimes, a conviction under a material support indictment typically results in a prison sentence 7.8 times longer (Beck et al., 2011, p. 20).

The Controversy Surrounding § 2339B

Statute § 2339A can be summarized as providing support for an organization or person intending to commit, or committing, a serious federal crime and has been equated to an 'aiding and abetting' statute for terrorism-related crimes (Zabel and Benjamin, 2009, p. 13). In contrast, statute § 2339B represents a more controversial attempt to stop any form of support to an organization that has been designated a terrorist group by the U.S. State Department. The main controversial aspect of § 2339B is that a conviction does not require the prosecution to show the defendant intended to provide material support for terrorism activity (Beck et al., 2011, p. 20). § 2339B has therefore been called the 'guilt by association' terrorism statute (Yaster, 2008, p. 1354). The statute does provide a small legal safe haven for the accused, in that it requires the prosecution to prove knowledge that the aid provided was going to a designated terrorist organization.

Although a § 2339B First and Fifth Amendment Constitutional challenge before the U.S. Supreme Court resulted in a divided court, the 6/3 majority concluded that the wording of the statute does not prevent an individual or group from engaging in advocacy efforts independent of an organization listed as a terrorist group, therefore free speech rights are protected (Brown, 2010). In contrast, the Court agreed with the government that even humanitarian support could free up resources for committing terrorist acts and such activities could thereore be prosecuted under § 2339B.

The Case of Ali Saleh Kahlah al-Marri

On September 10, 2001 Ali Saleh Kahlah al-Marri entered the U.S. As a student enrolled at Bradley University in Illinois (Office of Public Affairs, 2009, para. 10-12). In December of the same year al-Marri was arrested for credit card fraud and lying to federal agents. He subsequently became a material witness for the September 11, 2001 attacks on the World Trade Center and was transferred to the Southern District of New York to be charged with credit card fraud, making false statements, and identity theft. These crimes were reported to reflect the defendant's attempts to provide material support to al Qaeda. After waving rights for venue preference, al-Marri was sent back to Illinois for further court proceedings.

President Bush declared al-Marri an enemy combatant on June 23, 2003 and was subsequently transferred to a Navy brig in Charleston, South Carolina, where he spent almost six years in isolation (Office of Public Affairs, 2009, para. 10-12). President Obama ordered his legal team on January 22, 2009 to investigate whether it would be possible to prosecute al-Marri in a civilian court and he was eventually transferred back to Illinois for grand jury indictment proceedings. This transfer from a military to a civilian venue occurred just as the Supreme Court was preparing to hear arguments on the constitutionality of enemy combatant detentions (Said, 2011, p. 543).

Al-Marri eventually pled guilty to providing material support to al-Qaeda, despite claiming his innocence throughout his stay in the Navy brig in Charleston (Times Topics, 2009). His lengthy confession outlined his relationship with Khalid Sheikh Mohammed, the alleged mastermind behind the September 11 attacks (Said, 2011, p. 543). His plea deal reduced the severity of the sentence he would have otherwise received and the judge sentenced him to serve 100 months in prison and three years of supervised release (National Security Division, 2010). The sentence was the maximum allowable under § 2339B or 15 years, but al-Marri was given credit for time served in Navy brig (Office of Public Affairs, 2009, para. 10-12).